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In re Boslet

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 21, 2007

IN THE MATTER OF CAPTAIN FRANK BOSLET

On appeal from a Resolution and Order by the New Jersey Maritime Pilot and Docking Pilot Commission, Resolution No. 06-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 4, 2007

Before Judges Payne and Messano.

Captain Frank Boslet appeals from the final order of the New Jersey Maritime Pilot and Docking Pilot Commission (the Commission) that suspended his maritime pilot's license for a period of one year without pay. Appellant argues the length of the suspension violates legislative policy and was otherwise arbitrary and unreasonable. The Commission contends that the imposition of a one-year suspension was specifically permitted by regulation and was otherwise an appropriate exercise of discretion. After consideration of these arguments in light of the record below and applicable legal standards, we affirm.

The facts and procedural history leading to the Commission's determination are essentially undisputed. Appellant is a licensed, maritime pilot subject to the Commission's regulations adopted pursuant to N.J.S.A. 12:8-2. In January 2005, he was arrested in Greenwich Township, New Jersey, for driving while intoxicated (DWI). At the time, appellant was on vacation and not scheduled to return to work until ten days after his arrest. In May 2006, he was convicted of the charge and his New Jersey motor vehicle driver's license was suspended for a period of seven months.

The Commission was unaware of these facts until late August 2006. On September 5, 2006, the Commission notified appellant by mail that it was immediately suspending his pilot's license for violating N.J.A.C. 16:64-7.14(a)3, which requires, among other things, that any pilot provide written notice to the Pilot's Association within twenty-four hours if charged with or convicted of DWI. Pursuant to N.J.S.A. 12:8-21, the Commission scheduled a hearing for October 5, 2006.

Appellant was represented by counsel at the hearing, and the essential facts that we have outlined above were admitted.

Appellant, who also held a pilot's license in the State of New York and a federal pilot's license issued by the Coast Guard, testified that he was unaware of the obligation to report any DWI arrest or conviction, particularly since the events in this case occurred while he was on vacation and had no connection to his duties.

The Commission produced two documents obtained from the Board of Commissioners of Pilots of the State of New York. The first, dated June 10, 2005, was a "Certification and Authorization," in which appellant certified to the New York Board that his "driver's license [had] not been suspended or revoked within the last [twelve] months," and that he had not been charged with DWI during that time. The second, dated June 9, 2006, was a similar document in which appellant certified again that his driver's license had not been suspended within the last twelve months because of a DWI conviction.

Appellant testified that he signed the two New York certifications believing he was only authorizing the release of his driver's abstract from New Jersey's Motor Vehicle Commission. He claimed that he did not read either form before he signed it.

At the conclusion of all the testimony, the Commission voted unanimously to approve a resolution and order that suspended appellant's pilot's license for twelve months, and ordered his participation in and successful completion of a substance abuse program. This appeal then ensued.*fn1

Appellant argues the twelve-month suspension of his pilot's license was excessive, contrary to the legislative policy expressed in the Commission's regulations, and otherwise arbitrary and unreasonable because it was based upon conduct other than that charged. He notes that the Commission has adopted other regulations that expressly address the consumption of alcohol as it relates to the actual conduct of a pilot in the performance of his duties. N.J.A.C. 16:64-7.3 provides

(a) No pilot or apprentice shall: . . . .

2. Consume alcohol on duty or subject to being called on duty, or during an eight hour period prior to being on duty or subject to being called on duty;

3. Be intoxicated by having a blood alcohol concentration of .04 percent or greater either while on duty or subject to being called on duty, or during an eight hour period prior to being on duty or subject to being called on duty;

At all times relevant to this appeal, the penalties for violation of these two sections of the regulations were contained in N.J.A.C. 16:64-7.15, which provided

(a) Any pilot who violates either of the prohibitions in N.J.A.C. 16:64-7.3(a)2 or 3 shall immediately be prohibited from engaging in pilotage operations pursuant to N.J.A.C. 16:64-6.4(b) and may, after opportunity for an adjudicatory hearing pursuant to N.J.A.C. 16:64-6.6:

1. For the first offense:

ii. Be suspended for six months; and

iii. Pay a penalty of $50.00;

2. For the second offense, have his or her license permanently revoked.*fn2

Appellant contends, therefore, that these regulations reflect the legislative decision to severely punish those pilots whose alcohol ingestion and potential piloting duties converge to create a threat to public safety. He notes that he was only charged with a failure to notify the Commission of his DWI offense, not an activity that related to his operation of a vessel, and, thus, he was not subject to the penalties contained in N.J.A.C. 16:64-7.15. Nevertheless, he argues, the Commission decision to suspend his license for one year imposed discipline more severe than that imposed for actually operating a vessel while impaired.

The Commission contends that pursuant to N.J.A.C. 16:64-6.4(a)1, it may "suspend, limit, or revoke the license . . . of a pilot" who violates its regulations. See also N.J.S.A. 12:8-19 (permitting the suspension or revocation of a pilot's license for willful or negligent violations of the statute or the Commission's regulations). The Commission further contends that it appropriately exercised its discretion by imposing a twelve-month license suspension.

We begin by noting that our review of agency action is limited and we "may not substitute [our] judgment for that of the expertise of the agency." Williams v. Dep't of Human Servs., 116 N.J. 102, 107 (1989). As the Williams court noted,

[T]he judicial role is restricted to three inquiries: (1) whether the agency's action violated the enabling act's express or implied legislative policies, (2) whether there was insubstantial evidence in the record to support the findings on which the agency based its actions, and (3) whether in applying the legislative policies to the facts, the agency clearly erred by reaching a conclusion that could not reasonably have been made after weighing the relative factors. [Id. at 108.]

The actions of an administrative agency are granted a "strong presumption of reasonableness." Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed 2d 245 (1980).

Here, appellant does not contest the adequacy of the evidence adduced before the Commission, nor does he contend that it erred by suspending his pilot's license. Rather, it is the length of the suspension that is at issue.

We conclude that the imposition of a twelve-month suspension of appellant's pilot's license does not violate any express or implied legislative policy. In enacting the current system for training and monitoring maritime and docking pilots, our legislature specifically noted New Jersey's "responsibility for port security in the Port of New York and New Jersey," and its "right and responsibility to regulate maritime pilotage in the port." N.J.S.A. 12:8-1.1a. It further noted the "increased emphasis . . . required by both the federal and state governments on homeland security," after the 9/11 attacks, "with particular attention to the security of American ports." N.J.S.A. 12:8-1.1b.

As a result, the Legislature adopted a statutory and regulatory framework that would "provide for a system that will ensure the proper and consistent identification, training, selection, oversight and monitoring of both maritime pilots and docking pilots." N.J.S.A. 12:8-1.1d. And, in particular, the Legislature found it to be "in the public interest to modernize, clarify, revise and expand New Jersey's maritime pilotage laws, and to strengthen the New Jersey pilotage commission by expanding its powers and duties . . . ." N.J.S.A. 12:8-1.1e. Therefore, we conclude the Commission's strict application of its regulations is consistent with the express legislative policy regarding oversight of maritime and docking pilots.

Given the involvement of waterways that affect both New Jersey and New York, which are subject to extensive maritime traffic and are of strategic and commercial importance, it is easy to understand why the Commission's regulations impose significant qualifying criteria upon anyone wishing to become a pilot. N.J.A.C. 16:64-2.3. Thereafter, each pilot must take an oath of office, N.J.A.C. 16:64-3.7, submit to a yearly physical, N.J.A.C. 16:64-3.6, meet continuing license requirements, N.J.A.C. 16:64-3.9, and submit to random drug and alcohol testing. N.J.A.C. 16:64-7.7.

The regulations impose a continuous requirement upon every pilot to report, within twenty-four hours, any formal charge of a violation of federal or state drug laws, United States Coast Guard regulations involving alcohol or drugs, and any boating or vehicle DWI charge. N.J.A.C. 16:64-7.14(a). The Commission is expressly authorized to search the motor vehicle and criminal history records of pilots to determine whether they have complied with these reporting requirements. N.J.A.C. 16:64-7.14(f).

Given this intensive regulatory scheme, we are convinced that appellant's suspension -- of greater length than what could have been imposed upon a pilot actually found to have ingested alcohol on duty -- does not undermine the overall legislative purposes we have identified. Rather, the Legislature has left the enforcement of statutory and regulatory violations to the Commission. And, in this case, the Commission imposed a sanction specifically authorized and within the exercise of its discretion.

Nor do we find appellant's contention that the Commission improperly utilized the information contained on the New York certifications to enhance his penalty, or as he argues, penalize him for filing false certifications with another board. It is clear from the record that the Commission provided appellant with an opportunity to explain his failure to report his DWI arrest, some eighteen months earlier, and his conviction, some four months earlier. He explained that he did not know of the obligation to report the arrest or conviction. The Commission assessed the credibility of this excuse by considering the appellant's two false certifications in New York. Based upon those, the Commission could rightfully reject appellant's excuse that he lacked knowledge of the reporting obligation by concluding he was in fact purposely trying to conceal his arrest and conviction from both agencies.

As our Supreme Court recently noted, "[C]courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." In Re Carter, 191 N.J. 474, 486 (2007). We find no basis to determine that the penalty imposed here was arbitrary, capricious, or unreasonable.

Affirmed.


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